In a case demonstrating the ongoing difficulties of applying the Spokeo decision to interpret injury-in-fact, a Massachusetts federal court last week denied a motion to dismiss by USA Today parent company, Gannett Satellite Information Network Inc., where the company allegedly disclosed personal data about a user’s video-viewing history to a third-party analytics firm.

The putative class action was brought in 2014 by a man who alleges Gannett violated the Video Privacy Protection Act (“VPPA”) by recording the titles of videos he viewed on the USA Today app, his Android ID, and the GPS coordinates of his device at the time videos were watched, and sending that information to Adobe, its analytics vendor, without his permission.

U.S. District Judge Saylor initially dismissed the suit, ruling that the plaintiff’s mere use of the app did not make him a subscriber under the VPPA, as he had not paid any fees, registered any information or received any delivery in order to access the app. A three-judge panel on the First Circuit (which included former Supreme Court Justice David Souter) reversed the ruling and remanded the case, holding that monetary payment was not a necessary condition to be considered a subscriber under VPPA.

As we’ve reported, the Supreme Court’s ruling in Spokeo established that in order for a plaintiff to establish injury-in-fact, he must demonstrate that he suffered an invasion of a legally protected interest that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”

In light of Gannett’s motion to dismiss, plaintiff argued Spokeo is inapplicable because it implicated the Fair Credit Reporting Act that involves procedural rights, while the current case involves the VPPA, which establishes substantive rights that create a cognizable injury when violated.  In an attempt to dismiss the suit, Gannett argued the plaintiff lacked Article III standing and that his interpretation of Spokeo was incorrect.  Gannett contended that the plaintiff had to demonstrate more than the mere fact that the disclosure occurred in order to demonstrate injury-in-fact.  Plaintiff has not yet shown that Adobe linked him personally to that information, or that anyone saw his video preferences after they were disclosed.

Judge Saylor denied Gannett’s motion to dismiss, ruling that the intangible harm supposedly suffered by the plaintiff from Gannett’s alleged disclosure of his personal data is a concrete injury-in-fact sufficient to carry his claims to court.

Although Gannett’s initial attempt to dismiss was thwarted, the ruling was silent on the fundamental issue of whether the plaintiff’s pleaded injuries actually constituted injury-in-fact, which is to be determined by Judge Saylor.

We will keep a close eye on how the federal court rules on the issue of Article III standing, as the outcome may set an important precedent for VPPA cases to come.